Citation Nr: 9903403
Decision Date: 02/05/99 Archive Date: 02/10/99
DOCKET NO. 97-29 786 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to service connection for stomach disability.
2. Entitlement to service connection for back disability.
3. Entitlement to service connection for bilateral kidney
disability.
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Associate Counsel
INTRODUCTION
The appellant had active military service from February 15,
1977 to March 1, 1977.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 1997 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Louisville,
Kentucky. The appellant presented testimony from that RO at
a video conference hearing held before the undersigned,
seated in Washington, DC, in October 1998.
FINDING OF FACT
The claims for service connection for stomach, back and
bilateral kidney disabilities are not plausible.
CONCLUSION OF LAW
The claims for service connection for stomach, back and
bilateral kidney disabilities are not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Applicable law provides that service connection may be
granted for disability resulting from disease or injury
incurred or aggravated during active service. 38 U.S.C.A. §
1131 (West 1991); 38 C.F.R. § 3.303 (1998). However, as a
preliminary matter, the Board must determine whether the
appellant has submitted evidence of well-grounded claims.
38 U.S.C.A. § 5107(a). If he has not, his claims must fail,
and VA is not obligated to assist the appellant in their
development. 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5
Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609
(1992).
The United States Court of Veterans Appeals (Court) has
stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally
places an initial burden on a claimant to produce evidence
that a claim is well grounded. See Grivois v. Brown, 6 Vet.
App. 136 (1994); Grottveit at 92; Tirpak at 610-11. A well-
grounded claim is a plausible claim, that is, a claim which
is meritorious on its own or capable of substantiation.
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court
has stated that the quality and quantity of evidence required
to meet this statutory burden depends upon the issue
presented by the claim. Grottveit at 92-93. Where a
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is plausible or possible is required. Id.
Further, in order for a claim to be considered plausible, and
therefore well grounded, there must be evidence of both a
current disability and evidence of relationship between that
disability and an injury or disease incurred in service or
some other manifestation of the disability during service.
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer
v. Derwinski, 3 Vet. App. 223, 225 (1992); Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992).
Factual Background
Service medical records show that the appellant was referred
to a hospital following an injury involving the area of the
small of his back and kidney. The only other reference to
the appellant's claimed disabilities is in a Statement of
Medical Condition completed by the appellant on March 1,
1977, in which he reported developing kidney stones after his
entrance examination of February 1977.
Private treatment records from Greene Memorial Hospital for
August 1980 to June 1995 disclose that the appellant
presented in 1980 with a several week history of vomiting
blood, at which time he reported that he had been discharged
from service with ulcers. Gastroscopy disclosed the absence
of any ulcerations, and the appellant was diagnosed with
healing gastritis of the cardioesophageal junction, probably
related to alcohol consumption. The appellant presented in
June 1995 with complaints of stomach and back pain, as well
as burning urination and diarrhea, of recent onset. The
appellant was diagnosed with acute diarrheal illness with
hematochezia.
Of record is a hospital report from Fleming County Hospital
for June 1996, which indicates that the appellant presented
with a two week history of mid-epigastric pain and
intermittent melena. Esophagogastroduodenoscopy disclosed
evidence of healed ulcer disease, but with no active ulcers
other than an esophageal ulcer; the appellant's stomach was
normal. The appellant was diagnosed with upper
gastrointestinal bleeding, esophageal ulcer with diffuse
esophagitis, and with history of peptic ulcer disease. The
records contain no reference to the appellant's period of
service.
VA treatment records for May 1997 to July 1997 document
treatment for recent onset emesis and epigastric pain,
diagnosed as nonspecific gastritis and duodenitis, as well as
for alcohol dependence. The appellant reported a previous
medical history of back pain and peptic ulcer disease. The
records do not refer to the appellant's period of service.
On file is a statement, dated in May 1997, from I.P., which
indicates that the appellant was hospitalized in service
following an injury to his back and kidney, and that he was
medically discharged shortly thereafter. She also indicated
that the appellant has not been well since service
discharge.
At the appellant's October 1998 hearing, he testified that he
injured his stomach, back and kidneys in service when he fell
into a ditch. He stated that he was thereafter hospitalized
when he spit up blood, and he averred that testing disclosed
blood in his kidneys and that his treating physicians
informed him that the inside lining of his stomach was
bruised. He stated that his service discharge occurred
directly from the hospital, and that he therefore believed he
received a medical discharge. He reported being hospitalized
numerous times since service for stomach disability,
complained that he continues to spit blood, and indicated
that he urinated blood and that his back and kidneys still
hurt.
Analysis
The Board initially notes that although the appellant
contends that he was medically discharged from service, his
DD 214 does not indicate that he received a Certificate of
Disability for Discharge, and the appellant, when questioned
at his October 1998 hearing, did not indicate that he was in
possession of such a document.
A. Stomach disability
Service medical records are negative for evidence of stomach
disability and there is no postservice medical evidence of
stomach disability until 1980 and no medical evidence of
record linking the currently present disability to service.
While the appellant claims that service physicians informed
him that the inside lining of his stomach was bruised, the
Board points out that the appellant's account of what his
physicians purportedly told him, filtered as it is through
the sensibilities of a layperson, does not constitute the
competent medical evidence required to well ground his claim.
See Robinette v. Brown, 8 Vet. App. 69 (1995). Moreover,
although the appellant, when treated in 1980, reported a
service history of ulcers, no evidence of ulceration was
present on examination in 1980, and in any event the
appellant's treating physicians did not relate any findings
on examination to his period of service. Evidence which is
simply unenhanced information recorded by a medical examiner
does not constitute competent medical evidence sufficient to
well ground a claim. LeShore v. Brown, 8 Vet. App. 406, 409
(1995).
The only evidence supportive of an etiological relationship
consists of the lay assertions of the appellant and I.P. As
the Court held in Espiritu v. Derwinski, 2 Vet. App. 492
(1992), lay persons are not competent to offer medical
opinions, so the assertions of lay persons concerning medical
causation cannot constitute evidence of a well-grounded
claim. Moreover, while the appellant is competent to testify
as to his symptoms during and after service, he is not
competent to relate his present condition to those symptoms.
See Savage, 10 Vet. App. 488 (1997). In light of these
circumstances, the Board must conclude that the appellant's
claim is not well grounded.
B. Back disability
Although the appellant sustained a back injury in service, he
did not report any back complaints at service discharge, and
there is no post-service medical evidence on file of back
disability. The only evidence supportive of the appellant's
claim consists of the lay assertions of the appellant and
I.P. As the Court held in Espiritu v. Derwinski, 2 Vet. App.
492 (1992), lay persons are not competent to offer medical
opinions, so the assertions of lay persons concerning a
medical diagnosis cannot constitute evidence of a well-
grounded claim. In the absence of proof of a present
disability, there can be no valid claim. Brammer v.
Derwinski, 3 Vet. App. 223 (1992). In light of these
circumstances, the Board must conclude that the appellant's
claim is not well grounded.
C. Bilateral kidney disability
Although the appellant reported kidney stones at service
discharge, there is in fact no medical evidence of kidney
stones either in service or thereafter. Moreover, even
assuming that the appellant injured his kidneys in service as
alleged, there notably is no post-service medical evidence of
kidney disability. The only evidence supportive of the
appellant's claim consists of the lay assertions of the
appellant and I.P. Since lay persons are not competent to
offer opinions concerning a medical diagnosis, see Espiritu,
supra, and in the absence of competent evidence of a present
disability, the Board must conclude that the appellant's
claim is not well grounded. Brammer, supra.
The Board notes that medical records from the military
hospital at Fort Jackson, South Carolina, for 1977 are not on
file. However, the appellant reported at his October 1998
hearing that he had attempted to obtain his medical records
from that facility, but was informed his records had been
lost or destroyed.
The Board also notes that the appellant has claimed that he
was seen at Mary Chiles Hospital on an outpatient basis in
May 1993. Records from that facility are not on file.
However, the appellant reported that his efforts to obtain
records from that facility have been unsuccessful. In any
event, since any such records would show evaluation of
stomach disability more than 15 years after service and the
appellant has not alleged that records from this facility
would provide medical evidence of an etiological link between
his current disability and service, or that the records would
show diagnoses of back or bilateral kidney disability, the
Board concludes that a remand of this case for the purpose of
obtaining these records is not warranted.
The Board views its foregoing discussion as sufficient to
inform the appellant of the elements necessary to complete
his application to reopen his claims for service connection
for stomach, back and bilateral kidney disabilities. Graves
v. Brown, 8 Vet. App. 522, 524 (1996).
ORDER
Entitlement to service connection for stomach disability is
denied.
Entitlement to service connection for back disability is
denied.
Entitlement to service connection for bilateral kidney
disability is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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